Sheriffs Amendment Bill [B2-2012]: briefing by Department of Justice and Constitutional Development

Meeting report

Presentation: Presentation on the Sheriffs’ Amendment Bill
Mr Jacob Skosana, Chief Director: Policy, Department of Justice and Constitutional Development (DoJ&CD), said that the Department was going to give a brief overview and operating environment of the sheriffs sector. This system served as a conveyor belt for the entire civil justice system. Sheriffs disseminated court orders and performed executions amongst other functions. This was an important part of the civil justice system. The Sheriff’s Act of 1990 was privatised in 1986 because the state used to bear any acts of negligence and damage to property by sheriffs.  From time to time the Minister of Justice made adjustments to the amounts and types of rates that sheriffs may charge their clients. The Board of Sheriffs charged its members a fee and it also generated income via the fidelity fund. Of the 234 sheriffs, 167 were white of which only 36 were women. There were 248 vacancies in the sheriff’s profession. Sheriffs generated their income from their own initiatives therefore one found that they were mostly located in affluent urban metros that were economically vibrant. In the rural and underdeveloped areas there was a shortage of sheriffs. Not having sheriffs in underdeveloped areas such as townships and in such places as the Northern Cope (NC) where there were vast distances meant that the delivery of justice was hampered significantly and women were unable to have protection orders delivered for example.

The disparities in race and gender in the sheriffs sector was fuelled by the inequality between urban and underdeveloped areas. Of the 366 magisterial districts 30% were in rural villages which were not serviceable thus communities living in these areas were alienated from the civil justice system. The Bill aimed to strengthen the acting arrangements for sheriffs and state employees would be enabled to execute certain court functions where the Department was unable to attract sheriffs. State officials who could be eligible for the acting sheriff positions would be the Registrars of the Court and maintenance investigators. The Board of Sheriffs was appointed by the Minister of Justice to regulate the sheriffs’ profession. The Board was structured in a manner that promoted self interest and not what was in the public interest because its composition as provided for in the Act was six to nine sheriffs and three to six non - sheriffs. Part of the civil justice review process was that the delivery of summons would be through email and post as opposed to the current system where a sheriff does it and charges for their time and fuel. The civil justice review process also included executions especially at the stage where attached assets were auctioned. There were private auctioneers who were not sheriffs that auctioneered goods unregulated, the aim was to have this regulated.

Briefing Note on the Sheriffs Amendment Bill [B2-2012]
Mr Johan Labuschagne, Principal State Law Adviser from the DoJ&CD said that he would highlight some of the more important amendments to the Committee. Clause1 amended certain of the existing definitions that had to be brought in line with the new Bill.  Clause 2 amended Section 2 of the Act so as to provide that the Minister of Justice may, after considering the report of an Advisory Committee, appoint a person as a sheriff. The role of the Advisory Committee would be to shortlist, interview and make recommendations to the Committee. Clause 3 inserted a new section 2A that provided for the remuneration of members of the Advisory Committee who were not in the full time employment of the state. Clause 4 amended the existing Section 5 and inserted a new 5(1)(d). Clause 6 inserted a new 6A and 6B which was concerned with the new state sheriffs. The new state sheriffs would only be responsible for serving documents. Clause 6 substituted Section 8 of the Act which dealt with the Board. Clause 7 was aimed at restructuring the Board and reduced the number of board members from the current 12 to 11. The proposed 11 members of the Board were five sheriffs; an official of the DoJ&CD; one attorney nominated by the Law Society of South Africa (LSSA); one nominee from the National Credit Regulator (NCR) and three fit and proper persons designated by the Minister of Justice. Clause 8 proposed amendments that dealt with the appointment of the members of the Board as well as the filing of vacancies. Clause 9 substituted Section 12 and the amendments were consequential in nature. Clause 10 amended Section 13 to provide for payments for members of committees that were part of the board. Clause 11 inserted a new Section 14A. The new section provided for the dissolution of the Board by the Minister; the appointment of an interim board and the convening of special meetings; the quorum for a meeting of the board and the procedures to be followed in respect of a meeting held by an interim board.

Clause 12 amended Section 16 of the Act which dealt with the general functions of the Board. Clause 13 amended Section 26 of the Act in order to provide that the maximum amount that may be recovered by the Board from the Fidelity Fund for Sheriffs (FFS) in consultation with the Minister of Justice. Clause 14 amended Section 28 by adding two new subsections. Clause 15 amended Section 43 of the Act to provide that a sheriff who conducted work without permission from the Minister would be guilty of improper conduct. Clause 16 amended Section 62 that set out the matters in respect of which the Minister may, after consultation with the Board, make Regulations. All the stakeholders including the Broad South African Institute (BSAI), the South African National Association for Progressive Sheriffs (SANAPS) and LSSA were consulted on the provisions of the Bill. The costs of the Bill to the state would be minimal and would depend on the composition of the board as well as when and where they would sit. The Bill was a Section 75 Bill.

Discussion
Prof G Ndabandaba (ANC) asked if persons from other professions were considered for sheriff positions; how efficient was the sheriff’s sector in underdeveloped regions and how was the remuneration scale in these areas?

Ms D Schäfer (DA) asked why state officials, who would be appointed as sheriffs, would be allowed to charge as they were employed by the government and already earning a salary. There was no provision on the number of appointees on the committees of the Board and this seemed like another “gravy train” that was on the way. Surely there should have been criteria for the appointment of a sheriff and the same goes for the Minister; what criteria would inform his decision on who would sit on the Sheriff’s Board.

Mr J Jeffery (ANC) said that there were some gender issues in the Act that were picked up in the Bill but others were not. Was there thought given behind the reduction of members sitting on the Board from the attorneys profession? Was Legal Aid South Africa (LASA) consulted on the Bill as it was taking on more and more civil matters?

Adv S Holomisa (ANC) asked if the judiciary had been consulted as it was responsible for issuing civil orders that were then carried out by sheriffs. Was there no specification on the type of qualifications that were needed to be a sheriff, what informed the decision of the person who appointed sheriffs?

Mr S Swart (ACDP) said that there was widespread corruption and racketeering in the sheriff’s profession. When was a comprehensive review going to be done? Judge Nathan Erasmus had resigned from the Sheriff’s Board due to problems he had experienced with the Board- this was a serious indictment. Would the proposed amendments be sufficient to address the problems in the sheriff’s sector and all the criminal elements that were evident? In the definitions the word ‘superior court’ was being replaced with ‘high court’ however Clause 4 which was an amendment for Section 5 kept the word ‘superior courts’.

Mr Skosana replied that the Act was old and the comprehensive review of the sector would take some time however there were pending matters which had to be addressed hence the Bill. There were other things that had to be looked at including the gender insensitive language in the Act. The comprehensive review would also include the underdeveloped areas. The Department had not consulted judges mainly because they were part of the broader consultative process on a higher level, they were aware of plans for the complete review of the civil justice system in South Africa (SA). Judge Erasmus had resigned due to challenges that he faced and asked for permission from the Minister, amongst the problems that he identified was the self interest element.

Mr Labuschagne said that the new proposed composition of the Board had a limitation on the number of sheriffs that could sit on the Board in order to address the self interest problem. The Department was aware of the gender insensitive language however it was of the view that correcting this would form part of the overall comprehensive review of the whole Act and not this Bill that was aimed at addressing some of the pending matters. The Department would make it a point to consult with LASA.

Mr Brendon Williams, State Law Adviser from the DoJ&CD said that there were lots of people serving different notices who were not sheriffs; this had to be looked at during the comprehensive review of the civil justice system. Serving notices was fine but executions were more difficult especially where a sheriff had to identify security after a judgment had been issued. This also had to be considered further. There were challenges in the rural areas especially where a sheriff had to travel vast distances to serve notices. There was provision for qualifications in the Bill but this was withdrawn due to the fact that there was no such provision in the Act itself.  There were requirements included in advertisements for the appointment of a sheriff; it was mainly that a person had to have experience and a matric qualification. The Department did conduct oversight over the sheriff’s sector and there had been some dismissals of sheriffs and disciplinary action taken. Addressing the other problems including those raised by Mr Swart would be handled during the overall review of the civil justice system.

The Chairperson said that the Committee would place the advertisement calling for comment on the Bill from the public and a deadline of two weeks would be set.

Meeting Adjourned.